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Insider trading cases pop up every now and again and most cases do not warrant highlighting – post-Boesky everyone in the securities industry is well aware that trading on inside information is illegal. However, it warrants emphasis that the SEC will crack down on hedge fund managers or traders involved with insider trading and the penalties are harsh. The individuals (including a hedge fund manager) involved in the action described in the SEC litigation release reprinted below were subject to fines and disgorgement, of course, but were also barred from the securities industry. The severity of such a penalty underscores the importance of understanding and abiding by the insider trading rules.

As noted below, trading on insider information is illegal under both civil (Section 17(a) of the 1933 act, Section 10(b) of the 1934 act, and Rule 10b-5 thereunder) and criminal laws (generally securities fraud, but depending on the facts charges may also include wire fraud and commercial bribery).

The Securities and Exchange Commission announced today that on September 29, 2009, the Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, entered final judgments against defendants Erik R. Franklin, Q Capital Investment Partners, LP (“Q Capital”), and David M. Tavdy, in SEC v. Guttenberg, et al., C.A. No. 07 CV 1774 (S.D.N.Y.), an insider trading case the Commission filed on March 1, 2007. The Commission’s complaint alleged illegal insider trading in connection with two related schemes in which Wall Street professionals serially traded on material, nonpublic information tipped by insiders at UBS Securities LLC (“UBS”) and Morgan Stanley & Co., Inc. (“Morgan Stanley”), in exchange for cash kickbacks.

The Commission’s complaint alleged that from 2001 through 2006, Mitchel S. Guttenberg, an executive director in the equity research department of UBS, illegally tipped material, nonpublic information concerning upcoming UBS analyst upgrades and downgrades to two Wall Street traders, Franklin and Tavdy, in exchange for sharing in the illicit profits from their trading on that information. The complaint also alleged that Franklin was a downstream tippee in another scheme in which, in 2005 and 2006, Randi Collotta, an attorney who worked in the global compliance department of Morgan Stanley, illegally tipped material, nonpublic information concerning upcoming corporate acquisitions involving Morgan Stanley’s investment banking clients.

The complaint alleged that Franklin illegally traded on the inside information for two hedge funds he managed, Lyford Cay Capital, LP and Q Capital, and in his personal accounts. Tavdy illegally traded on the inside information (i) for Andover Brokerage, LLC and Assent LLC, registered broker-dealers where Tavdy was a proprietary trader, (ii) in his own personal account, (iii) in the accounts of a relative and friend, and (iv) in the accounts of Jasper Capital LLC, a day-trading firm with which Tavdy was associated. Franklin and Tavdy also had downstream tippees who traded on the inside information. Without admitting or denying the allegations in the complaint, Franklin, Q Capital, and Tavdy settled the Commission’s insider trading charges.

Franklin and Q Capital consented to the entry of a final judgment which (i) permanently enjoins them from violating Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), Rule 10b-5 thereunder, and Section 17(a) of the Securities Act of 1933 (“Securities Act”); and (ii) orders, on a joint and several liability basis, disgorgement of $5,400,000, with all but $290,000 waived based on a demonstrated inability to pay. In a related administrative proceeding, Franklin consented to the entry of a Commission order barring him from future association with any broker, dealer, or investment adviser. In a parallel criminal case, Franklin previously pled guilty to charges of securities fraud and conspiracy to commit securities fraud and is awaiting sentencing. U.S. v. Erik Franklin, No. 1:07-CR-164 (S.D.N.Y.).

Tavdy consented to the entry of a final judgment which (i) permanently enjoins him from violating Section 10(b) of the Exchange Act, Rule 10b-5 thereunder, and Section 17(a) of the Securities Act; and (ii) orders him to pay disgorgement of $10,300,000. In a related administrative proceeding, Tavdy consented to the entry of a Commission order barring him from future association with any broker or dealer. In a parallel criminal case, Tavdy previously pled guilty to charges of securities fraud and conspiracy to commit securities fraud, and was sentenced to 63 months in prison. U.S. v. Mitchel Guttenberg and David Tavdy, No. 1:07-CR-141 (S.D.N.Y.).

The Commission also announced that Samuel W. Childs, Jr., a former general securities principal at Assent LLC, consented to a Commission order barring him from future association with any broker or dealer, based on his criminal conviction for conspiracy to commit securities fraud, wire fraud and commercial bribery. U.S. v. Samuel W. Childs, Jr. and Laurence McKeever, No. 1:07-CR-142 (S.D.N.Y.). In that case, the criminal indictment alleged that Childs accepted bribes from traders at Assent LLC in exchange for not reporting their illegal trading to Assent management.

The Commission acknowledges the assistance and cooperation of the U.S. Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation.

Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund or if you are a current hedge fund manager with questions about the securities laws, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

Strategic Asset Management frequently introduces their clients to Fund of Funds seeking high quality investments and has first hand experience in the process of successfully pitching to Fund of Fund Managers.

Obtaining Capital from Fund of Funds

Many hedge fund managers find that after raising money from friends and family the next logical place is to seek investment from a Fund of Funds. When doing so it is very important that a manager have the right presentation and expectations when they approach such a fund. There are a number of stages a manager will go through with a Fund of Funds from initial contact to full investment. While there are no hard rules, the process of receiving allocations from a Fund of Funds generally consists of the following steps:

Initial Contact

Presentation

Due Diligence

Negotiation

Initial investment and monitoring

Full investment

Initial Contact

There are various ways to get the attention of a Fund of Hedge Funds manager. Arguably the best is through a direct referral by a party mutually known to both, but this is by no means the only effective way to come into contact. Fund of Funds can be met at conferences, through word of mouth, through industry organizations, by listing a fund on hedge fund databases, through third party marketers, via service providers such as the fund’s prime broker or administrator, and these are just a few of the many ways.

Preparation

Once there is an indication of interest a specific process will usually follow. Often missed, the next critical step is for the fund manager to thoroughly research the Fund of Funds that is interested in them. Managers sometimes focus so heavily on their own fund they forget that the goal is to address the needs of the manager to whom they are presenting. The manager should obtain as much literature as is available on the Fund of Funds. The offering memorandum is a good place to start. There is also nothing wrong with communicating with the Fund of Funds in advance of any meeting. Simply explain you would like to be well prepared for your meeting and want to have a full understanding of their objectives. Minimize the time you need from the Fund of Funds manager by having a concise, well prepared list of questions to ask.

With minimal homework, the fund manager can ascertain the types of strategies and investments a Fund of Funds manager is seeking. By understanding what they are seeking, the potential investment can be presented highlighting how the strategy addresses the investment goals found within their offering memorandum. You should be ready to discuss how your fund will correlate with their existing portfolio of funds. If you are unsure of what they invest in then correlate your fund to appropriate benchmarks, some of which may be very different from your fund (i.e. your fund may be a long only equity fund so the natural benchmark might be the S&P500, but you would also present your fund against such indexes as real estate, arbitrage, income funds etc if those are strategies the Fund of Fund invests in).

Depending upon the venue, you should have appropriate presentation materials. This goes well beyond the offering documents of the fund being presented. As a standard, Strategic Asset Management recommends having at the ready the last three years audited statements (if available), an up to date tear sheet, executive summary, and a comprehensive pitch book as well as a power point or other presentation. It sounds obvious but all materials need to be absolute professional quality. Missing or less than professional materials is indicative of a lack of investment of time, money and commitment by the fund manager. An investment in these materials should be done well in advance of any meeting. The lead time can be significant. At Strategic Asset Management, it often takes our design team well over a month to properly prepare these materials for a fund, and we have years of experience creating these materials.

Presentation

The most important factor when presenting to any investor, above all else, is honesty. If you are caught in a lie about anything, even something trivial, or appear evasive about a fact or issue then the opportunity is essentially over. You are there to present the facts about your investment. If it isn’t the right investment for them on its own merits then the sooner you find that out the less time that is wasted.

Beyond honesty, you should be very sure about your fund and all facts and circumstances surrounding its investment strategy. As you present it you should attempt to demonstrate how the addition of your fund affects the overall performance of the combined portfolio. Often overlooked, you should also spend some time discussing how you run your fund as a business. You may have a great investment strategy, but if the Fund of Funds feels you have difficulty running your management company as a business, they are not going to invest. On a number of occasions Strategic has received feedback from some of our Fund of Funds investors with the concern that the manger has a good investment strategy but does not have any experience running a business. If you need help from the right consultants or administrator, recognize it and get it.

It can not be stressed enough the importance of having proper professional materials. Understand that if they decide to invest in your fund they may at some point have to show your materials to THEIR key investors. If it is not to the highest standard you are already going to have difficulty getting them to invest capital.

One question Strategic is frequently asked is how to present a negative, whatever it may be, about the fund. We may be giving away a bit of a trade secret here, but our advice is the same to all. Put this negative at the very start of your presentation. What ever the negative is, the investor will find it, and at the very least you should not be attempting to hide it anyway. So what better approach than to put it right out there? Doing so then gives the Manager the opportunity to focus on the mitigating factors that reduce the impact of the negative. Also, when one quickly presents any problem with the fund it makes your audience feel you are being honest with them and the rest of what you present becomes more believable. By putting it very close to the beginning of your presentation you have the advantage of presenting it in just the way you want. You never want a prospective investor to ask about a negative before you have a chance to mention it yourself. No matter how sincere your intention, and you may have planned to highlight it mid presentation, if the Manager notes it first you are at a decided disadvantage.

Strategic assisted a successful fund manager a few years ago had the issue that he never graduated college. On our advice he opened his presentation noting that one of the interesting things about his background is how he did not possess a college degree, yet had managed to become a leader in his industry despite it. He noted all of his other partners had degrees and presented numerous published articles both he had written and that had been written about him. From there he continued with all the positive facts about the fund.

Also be aware that success in such meetings should not be gauged by whether or not they invest then and there. In another example, we introduced one of our clients, a new Manager with a fund that had been in operation for just one year to a Fund of Funds that indicated they were looking to allocate about $50 million to a strategy that was the same as was being run by our client. We created a tear sheet for him as well as other literature and put together a power point presentation. After his meeting we conducted a follow up conference and he felt the meeting did not go well because he did not walk out with an investment. While the Fund of Funds was not making any investment, they did ask to be sent performance numbers each month directly from Strategic and have audited financial statements sent as soon as available. In the analysis, this was actually a very successful first meeting. Not only did they express enough interest in the fund to invest their time monitoring them but they were at the beginning stages of the due diligence process in requesting his audited statements (which he did not yet have completed as this was his first year in operation). As an additional note, following an 18-month process, the Fund of Funds invested $35 million with this Manager in two stages.

On a final note, be aware when you are presenting to a Fund of Funds that you will probably only have 15-30 minutes to present. The best strategy is to have a high level power point presentation, and hand outs that you can either leave behind or cover in greater detail if more time is available. Also do not have too many people go to the presentation. Too many people sometimes gives the appearance of desperation.
Two should be a maximum unless there is some pressing reason to include more. Strategic has heard of times when 6 or more people went to present for what turned out to be a 15 minute time allotment.

Due Diligence

This process may seem straight forward but it actually falls under two distinct categories; pre-investment due diligence and ongoing due diligence.

Pre-investment due diligence is self explanatory. A Fund of Funds will likely put a Fund and its management team through a lengthy due diligence process that includes background checks, audited statements etc. It is in the best interest of the Manager to make this as easy as possible for them by providing all of the information they request.

Ongoing due diligence is often not given much thought by a Manager under evaluation, but the Fund of Funds will consider this critical. The Fund of Funds will evaluate the ways in which they will continue monitoring the fund once they have made an investment. They will carefully evaluate issues such as transparency, reporting, nature and verifiability of the investments, access to management and the fund’s administrator, etc. A Manager taking a proactive role in addressing how the Fund of Funds will independently verify the investment they make on an ongoing basis will give themselves an edge.

Also consider that the greater the investment a Fund of Funds intends to make the more important the ongoing due diligence becomes. It is not cost effective for a Fund of Funds to invest the time and expense in maintaining high due diligence in a small investment. Making it less expensive for a Fund of Funds to track its investment will not be a key factor, but will help the fund decide one investment over another if of equal merit on other factors.

Initial Investment and Monitoring

While not the rule, many Fund of Funds will start off with a small initial investment, with the intention of making a larger investment once the first investment performs to expectations. While there is no set benchmark, typically the initial investment may be anywhere from 5-20% of the ultimate intended amount and the trial period may be from 3 to 18 months. An evaluation will likely follow at the end of the period with the determination to either withdraw from the fund or invest more.

While performance is key, other factors are also evaluated during this time period. These factors include timeliness of reporting, including monthly statements, provision of a timely year end audit and tax statements, ease of interaction with the management team and other factors.

Negotiation

This may come at any time during the investment cycle. It may occur during the initial presentation or be brought up when the Fund of Funds is ready to make a final investment. This is where the Fund of Funds will attempt to get the Manager to lower either their management or incentive fee, if not both. A manager should be ready for such a conversation and know beforehand what they are willing to give away for a large investment. The management of the Fund of Funds knows all too well what it takes to run a fund, and can likely figure fairly accurately what your level of profit will be under varying scenarios. Every Manager makes their own negotiations but it is key to understand that this conversation is more likely than not to take place. They need to be ready to address it.

Full Investment

The final stage is when the Fund of Funds makes a large investment. Once achieved the goal is to keep them satisfied with their investment. It does not hurt to periodically review the steps made to obtain the original investment and use it as a means to build and strengthen the relationship over time. Regardless, Strategic offers a final important word of advice. Approach all investors as if they were a large fund of funds. Doing so will help you get prepared, give you practice with your presentation and in addressing questions and concerns, and allow you to address and mitigate any valid weaknesses they might expose through the process. Most important, treating each investor, even very small ones, with the same thoroughness and concern you would to the very largest investor is simply good business.

Further information can be obtained by contacting Strategic Asset Management directly. The web site is www.completehedge.com.

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Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund or register as an investment advisor, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

The Bay Area Hedge Fund Roundtable convened again today at the Sens Restaurant in San Francisco to discuss the global investing trends and how those trends are affecting the hedge fund industry. The presentation was moderated by Ron Resnick (ConselWorks LLC) and included the following panel participants:

Overall the panel discussion was very interesting and I think that Ron did a very good job of moderating in a kind of “Meet the Press” type of way. The speakers all had interesting viewpoints and were able to keep the audience interested in the topics. Below I will give a very high level run-down of the major topics discussed – if anything does not make sense, it is likely a mistake in my hearing so please do not hold that against any of the speakers.

Additional note: this is not in any way an advertisement for any hedge fund and is not an offering of any interests in a hedge fund. I have never talked to any of the named speakers and everything I am writing below is on my own volition.*

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John Burbank

The discussion was started when Ron asked John was his fund was investing in. John said that he is now investing in the United States in the same stuff as he was before. However, he spent a good deal of time discussing liquidity and how it will affect investment decisions going forward. Central to his discussion were his views on deflation. He ended this part of the discussion by noting that governments (especially the U.S. government) has so many tools to effect the financial markets (in addition to simply printing money) and that many actions are driven by the current liquidity situation.

Matt Kratter

I infer that Matt started his own hedge fund last year because he was asked whether it was a good or a bad time to start a hedge fund within the last twelve months. He noted that it was not the best time to be on your own but that the times serve as a good proving ground that a manager can withstand market downslides. Matt talked about variability of inflation going forward and that he is currently net short. He thinks that multiples are likely to retract in the future.

John Shearman

John was asked whether investor’s hedge fund expectations have changed. He said that investor expectations have come down a bit, but beleives that the forcase for the future has never been better. Post 2008 he sees that there has been a shifting of power back to hedge fund investors and he mentioned two buzzwords – lower fees and transparency. While fees have not really come down recently, there have been huge gains made in expectations of transparency. This is especially true with regard to valuation and verification of assets. Hedge funds have made these changes and it is relatively easy for them to say yes to such requests (as opposed to requests for fee decreases).

John seemed to indicate that there is more opportunity for investors to come together and present a united front with regard to what they want to see in these vehicles, but it has just not happened. A central reason is that foundations and endowments (two of the largest groups of hedge fund investors) are not really in a position to be an agent of change because they are examining the funds they are already invested in. He also mentioned a general increase in separately managed accounts noting that the central driving force is the investor’s need for control of assets – liquidity without conditions.

Patrick Wolff

Patrick was asked point blank while his group did not do as well this year. He said that, unfortunately, they had the wrong investments this year and that the drawdown was not a result of their risk management policies and procedures. Patrick talked about macro themes including China, volitility, carry trades over the last year and the fundamentals of major government players (centrally China and the U.S.). He feels there is a current bubble in China which is likely to last in the near term. He thought that a major macro issue moving forward will be how the governments will continue to be involved in the credit markets. Patrick believes that the U.S. has huge off balance sheet liabilities.

Other Question and Answers

What are the major trends moving forward?

John Burbank – governments changing the rules of the game as it is being played. What is going to happen will be driven by governments subject to: the price of the dollar, commodities, or China.

Why did gold hit an all-time high today?

Matt Kratter – I don’t know, but this is a question which everyone is asking – even the garbageman.

How is capital flowing?

John Shearman – there are a lot of opportunities in hedge funds – lots of alpha and distressed assets. Macro discretionary is a good play right now and there is a lot of interest in commodities.

How is fund raising in this environment?

Matt Kratter – fundraising has been slow since last year but there is more activity at the margins. Fundraising will probably stay difficult for awhile.

Are investors more interested in the investment side or infrastructure side during due diligence conversations?

John Burbank – all investor due diligence is taking longer. Current investors are coming back and asking questions they should have asked earlier. It is now similar to 2003 – there is a lot of excitement. Which makes sense because investors essentially have three choices: mutual funds, do-it-yourself, or hedge funds.

[Someone mentioned that capital is not there for a start up and the question arose as to whether two guys and a Bloomberg really had a chance to raise capital in this environment. John said that start up managers should not be afraid to start out small – he started with about $1MM in AUM and slowly grew to $12MM after three years (his firm now manages over $2 billion). John emphasized that over time good managers will be able to demonstrate their strategy and if the numbers are good, investors will eventually find such managers.]

What about hedge fund regulation?

Patrick Wolff – over hedge fund regulation is not a huge deal. If you are registering with the SEC you are going to be required to do things that, as a good business, you should be doing anyway. The key to regulation is that it needs to be sensible. Regulation itself is not bad.

Questions from the audience

When Ron asked the audience if there were any questions there was a long pause. I eventually asked the panel what they thought about the headlines recently regarding the U.S. dollar and whether it would remain the world’s reserve currency. Patrick responded first that worry about the dollar is overhyped. However, he did note that his fund has had some investors request share classes in a different currency.** John noted the practical limitations of moving toward another currency and noted that if a government needs to get a billion U.S. dollars it can happen, but that wouldn’t be the case with other currencies.

Note on People Who I Met

After the panel there was time to discuss the presentation and do some networking. I had the distinct pleasure of talking with a number of people at the event, including:

* If you are a named speaker and would like your name and information taken out of this article, please contact me.

** I am in the process of writing an article on this topic – if you are a hedge fund manager who wants to create another class of fund interests denominated in another currency, please feel free to contact me to discuss.

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Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and has written most all of the articles which appear on this website. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund or register as an investment advisor, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

I have written before that the biggest issue start-up and emerging hedge fund managers face is raising capital for their funds. I seem to have the same conversation on a weekly basis – the “how to do I grow my fund” conversation. Unfortunately I do not have the guaranteed step-by-step guide to raising boatloads of capital, but that is not to say that smaller managers cannot raise capital. I have seen plenty of groups who have made it over the proverbial hump by working ridiculously hard.

The article below (written by Richard Wilson of Hedge Fund Blogger) discusses some ideas that managers will want to consider when developing a program to raise hedge fund capital. Richard’s group provides consulting services and helps managers to raise money for their hedge funds.

The bad news is there is no magic bullet to raising capital. I spoke with at least a dozen managers this past week at our Hedge Fund Premium networking event in Chicago. Most were looking for capital raising help of some type and we discussed many roadblocks that managers are seeing between them and the AUM levels they are trying to achieve.

Our firm provides some capital raising tools, but I believe that daily action and discipline is the best thing that a fund can do to raise capital. They must take responsibility for marketing their fund and have someone reaching out to new investors on a daily basis, if they do not they will forever remain in the bottom 20% of the industry in terms of assets. Very few funds gain their initial assets through a super powerful third party marketing firms, third party marketers like to typically work with managers which have some AUM momentum or foundation underneath them.

To raise capital I believe that managers need to have superior tools and processes when compared to their competitors. This means superior investor cultivation processes in place, superior investor relationships management, superior marketing materials, superior outreach efforts, superior email marketing, and superior focus on investors which actually have the potential of making an investment. Each of those topics mentioned above could be discussed for a whole conference and all of these moving parts need to be in place to compete in today’s industry. While this does not mean you need to out-spend others you do need to strategically plan your marketing campaign.

There is a good quote that I heard which goes something like “If you want to have what others don’t you have to do what others won’t” In other words if you want to grow assets you must put in the extra work, planning, and strategy that others skip over.

Every morning I try to listen to a 45 minute custom MP3 audio session of business lessons, marketing tips and positive thinking notes. One great quote I hear every morning by our friend Brian Tracy, “Successful people dislike to do the same things that unsuccessful people dislike to do, but successful people get them done anyways because that is what they know is the price of success.” This is connected to an interview Brian conducts in which a multi-millionaire says that success is easy, “you must decide exactly what it is you want, and then pay the price to get to that point.”

All of this may sound wishy washy or non-exact but I think it is very important to realize that there is no one single magic bullet for raising capital. It takes hard work, trial and a superior effort on all fronts to stand out from your competition.

Read dozens of additional articles like this within our Marketing & Sales Guide.

Bart Mallon, Esq. runs hedge fund law blog and has written most all of the articles which appear on this website. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund, or if you have questions about investment adviser registration with the SEC or state securities commission, please call Mr. Mallon directly at 415-296-8510.

One of the things I have tried to emphasize within this blog is that there is no “one size fits all” legal solution to hedge fund formation. Each client/manager has a unique set of circumstances and will be subject to a potentially different sets of laws or regulations depending on those circumstances. This is especially true with regard to those managers who must register in a state that requires hedge fund manager registration. Because no two sets of state laws and regulations are the same, the manager must make sure that he understands the rules which are specific to his state.

High Asset Management Fees and Disclosure

One issue which comes up every now and again is whether or not disclosure will be required when the manager charges an annual asset management fee in excess of 3% of AUM. Generally regulators will require that certain disclosures be made to investors through the manager’s disclosure documents (generally in both the Form ADV and the hedge fund offering documents). Sometimes the regulator will require such disclosures based on a general provision (see CO IA fee rule discussion below) or on more explicit provisions (see 116.13(a) of the Texas Administrative Code). In either case managers will generally be required to make a prominent disclosure to investors that a 3% (or higher) annual asset management fee is in excess of industry norms and that similar advisory services may be obtained for less (whether or not this is true). While such a disclosure would, in most instances, be a best practice, managers should be aware that it may also be required if they are registered with a particular state.

State Performance Fee Rules

Like management fee disclosures, the rules for performance fees may differ based on the state of registration. For example, here are how four different states deal with performance fee issue:

Texas – Like most states, Texas allows state-registered investment advisers to charge performance fees only to those investors in a fund which are “qualified clients” as defined in Rule 205-3 of the Investment Advisers Act. This means that a hedge fund manager can only charge performance fees to investors in the fund which have a $1.5 million net worth or who have $750,000 of AUM with the manager (can be in the fund and through other accounts). See generally 116.13(b) of the Texas Administrative Code reprinted below.

New Jersey – Many states adopted laws and regulations based on the 1956 version of the Uniform Securities Act and have yet to make the most recent update to their laws and regulations (generally those found in the 2002 version of the Uniform Securities Act). Under the New Jersey laws a manager can charge performance fees to those clients with a $1 million net worth.

Indiana – similar to New Jersey, Indiana has laws which allow a manager to charge performance fees to those investors with a $1 million net worth. Additionally, Indiana allows a manager to charge performance fees or to those investors who have $500,000 of AUM with the manager (can be in the hedge fund and through other separately managed accounts). Indiana also has an interesting provision which specifies the manner in which the performance fee may be calculated – it requires that the fee be charged on a period of no less than one year. This rule is based on an earlier version of SEC Rule 205-3. What this means, essentially, is that managers who are registered in Indiana cannot charge quarterly performance fees, but must charge their performance fees only on an annual basis (or longer).

Michigan – Unlike any other state, Michigan actually forbids all performance fees for Michigan-registered investment advisors. The present statute is probably an unintended consequence of some sloppy drafting. Nonetheless, it is a regulation on the books. Hedge Fund Managers registered with Michigan, however, should see the bright spot – Michigan is in the process of updating its securities laws and regulations. This means that sometime in late 2009 or early 2010 it should be legal for investment advisors in Michigan to charge their clients a performance fee under certain circumstances (likely to mirror the SEC rules).

New York – Sometimes, states will have some wacky rules. In the case of New York, there are no rules regarding performance fees.

Other Issues

With regard to performance fees, the other issue which should be discussed with your hedge fund lawyer is whether or not the state “looks through” to the underlying investor to determine “qualified client” status. Generally most states will follow the SEC rule on this issue and look through the fund to the underlying investors to make this determination.

While these cases are just a couple of examples of the disparate treatment of similarly situated managers, they serve as a reminder that investment advisor (and securities) laws may differ wildly from jurisdiction to jurisdiction. Managers should be aware of the possibility of completely different laws and should be ready to discuss the issue with legal counsel.

The various rules discussed above have been reprinted below.

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Texas Rule

The full text of the Texas IA fee rules can be found here and are copied below.

§116.13.Advisory Fee Requirements.

(a) Any registered investment adviser who wishes to charge 3.0% or greater of the assets under management must disclose that such fee is in excess of the industry norm and that similar advisory services can be obtained for less.

(b) Any registered investment adviser who wishes to charge a fee based on a share of the capital gains or the capital appreciation of the funds or any portion of the funds of a client must comply with SEC Rule 205-3 (17 Code of Federal Regulations §275.205-3), which prohibits the use of such fee unless the client is a “qualified client.” In general, a qualified client may include:

(1) a natural person or company who at the time of entering into such agreement has at least $750,000 under the management of the investment adviser;

(2) a natural person or company who the adviser reasonably believes at the time of entering into the contract: (A) has a net worth of jointly with his or her spouse of more than $1,500,000; or (B) is a qualified purchaser as defined in the Investment Company Act of 1940, §2(a)(51)(A) (15 U.S.C. 80a-2(51)(A)); or

(3) a natural person who at the time of entering into the contract is: (A) An executive officer, director, trustee, general partner, or person serving in similar capacity of the investment adviser; or (B) An employee of the investment adviser (other than an employee performing solely clerical, secretarial, or administrative functions with regard to the investment adviser), who, in connection with his or her regular functions or duties, participates in the investment activities of such investment adviser, provided that such employee has been performing such functions and duties for or on behalf of the investment adviser, or substantially similar function or duties for or on behalf of another company for at least 12 months.

CO Rule

The full text of the Colorado laws and regulations can be found here. The fee discussion is reprinted below.

51-4.8(IA) Dishonest and Unethical Conduct

Introduction

A person who is an investment adviser or an investment adviser representative is a fiduciary and has a duty to act primarily for the benefit of its clients. While the extent and nature of this duty varies according to the nature of the relationship between an investment adviser and its clients and the circumstances of each case, an investment adviser or investment adviser representative shall not engage in dishonest or unethical conduct including the following:

J. Charging a client an advisory fee that is unreasonable in light of the type of services to be provided, the experience of the adviser, the sophistication and bargaining power of the client, and whether the adviser has disclosed that lower fees for comparable services may be available from other sources.

New Jersey

The full text of the New Jersey performance fee rules can be found here and are copied below.

13:47A-2.10 Performance fee compensation

…

(b) The client entering into the contract subject to this regulation must be a natural person or a company as defined in Rule 205-3, who the registered investment advisor (and any person acting on the investment advisor’s behalf) entering into the contract reasonably believes, immediately prior to entering into the contract, is a natural person or a company as defined in Rule 205-3, whose net worth at the time the contract is entered into exceeds $1,000,000. The net worth of a natural person shall be as defined by Rule 205-3 of the Investment Advisors Act of 1940.

(f) The client entering into the contract must be either of the following:

(1) A natural person or a company who immediately after entering into the contract has at least five hundred thousand dollars ($500,000) under the management of the investment adviser.

(2) A person who the investment adviser and its investment adviser representatives reasonably believe, immediately before entering into the contract, is a natural person or a company whose net worth, at the time the contract is entered into, exceeds one million dollars ($1,000,000). The net worth of a natural person may include assets held jointly with that person’s spouse.

Michigan

The current law (until October 1, 2009) can be found here and is copied below.

451.502 Investment adviser; unlawful practices.

(b) It is unlawful for any investment adviser to enter into, extend, or renew any investment advisory contract unless it provides in writing all of the following:

(1) That the investment adviser shall not be compensated on the basis of a share of capital gains upon or capital appreciation of the funds or any portion of the funds of the client.

New York

No laws regarding performance fees for state registered investment advisers.

Bart Mallon, Esq. runs hedge fund law blog and has written most all of the articles which appear on this website. Mr. Mallon’s legal practice, Cole-Frieman & Mallon LLP, is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund, please call Mr. Mallon directly at 415-296-8510.

Clients are demanding that investment managers communicate more than just data

The following white paper was released by BK Communications Group, a company which provides outsourced marketing and client communications solutions for the asset management industry. According to a recent survey of institutional hedge fund investors, clients largely prefer that managers take the call for transparency one level further and communicate to them in a meaningful way that explains what they’re doing with the funds. Popular forms of communication adopted by investment firms include pitch-books, websites, and personal contact. According to a report by McKinsey & Co., providing full transparency and enhancing communication efforts can be useful in client retention and future asset gathering.

The executive summary and highlights of the paper is re-printed in full below as well as a link to the paper.

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BKCG White Paper
June 2009
The New Transparency: Words

Clients are demanding that investment managers communicate more than just data

Executive Summary

Transparency has typically been equated with access to data (trade, exposure, valuation, etc.), but the financial crisis and fund scandals have led clients, investors, as well as regulators to demand more. Major surveys and anecdotal evidence indicate communication is now in demand. Clients want managers to put the numbers in context, to explain what they’re doing, to communicate on a clear and meaningful basis. This expanded transparency can help retain clients and strategically position a firm for future asset gathering, both by building a brand associated with full transparency and by ensuring that all touchpoints – from pitchbooks to websites to personal contact – are fully in place and high quality. Investment firms must carefully examine how they currently communicate, decide on any adjustments that must be made, and determine whether they have the internal capabilities and resources to execute on those adjustments.

Highlights

Communication is the new transparency. Data alone is no longer sufficient. Clients want managers to put the numbers in context, to explain what they’re doing, to communicate on a clear and meaningful basis

Preqin’s survey of 50 institutional hedge fund investors finds that events of the past 12 months have led 43% of respondents to expect “increased transparency and understandable strategy.”

Providing full transparency can be a way of helping to retain clients and strategically position a firm for future asset gathering. McKinsey & Co’s major report (“The Asset Management Industry in 2010”) concludes that “winning asset managers will be those who forge a superior reputation and capabilities for service and sophisticated advice.”

Communications transparency can be approached strategically, to ensure an investment firm’s brand is associated with openness and clarity, and to establish a reputation for thought leadership, as this is associated with mastery of core competence.

Communications transparency can also be approached tactically by making sure that all touchpoints – from pitchbooks to websites to personal contacts – are fully in place and high quality.

Many investment firms are shedding internal resources that are not profit centers, including communications personnel, or are hesitant to bring on those resources – leaving them without the necessary skills, or bandwidth, for an appropriate level of communications.

Bart Mallon, Esq. runs hedge fund law blog and has written most all of the articles which appear on this website. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund, please call Mr. Mallon directly at 415-296-8510.

There are two main jurisdictions to establish an offshore hedge fund (either as a single hedge fund or as part of a master-feeder structure). The two jurisdictions are the BVI and the Cayman Islands. This article will discuss some of the features of Cayman Island based hedge fund structures.

Why the Cayman Islands?

Cayman has been the leading jurisdiction for fund formation with an estimated 80% of the world’s hedge funds domiciled there. As of December 2008, Cayman had over 10,000 hedge funds registered with the local regulatory authority: The Cayman Islands Monetary Authority (“CIMA”).

First and foremost: establishing a fund in the Cayman Islands is easy and efficient, offering managers many competitive advantages over other jurisdictions including:

Non-public funds can be registered in as little as 3-5 days with CIMA and the vehicle of choice for the fund can be registered within 1 day prior to filing, if necessary;

Flexible statutory regimes, with an absence of exchange control provisions, that are well-established and relatively low-cost;

The regulatory and legislative environment is continuously evolving to strengthen the jurisdiction’s appeal for hedge funds in response to ever changing market conditions;

Cayman is a tax neutral jurisdiction – there are no capital gains, income, profits, withholding or inheritance taxes attaching to investment funds established there, nor to investors in such investment funds;

Cayman is a British Overseas Territory and as such maintains all of the security and stability associated with the British flag. The UK remains responsible for the islands’ external affairs, defence and their legal system; and

The quality and expertise of the Cayman Islands local services, infrastructure and legal system is well above par.

Does Every Hedge Fund Have to be Registered with CIMA?

While most funds (90%) will be required by Cayman Islands law to register with CIMA, there are some funds that will not: those funds where the equity interests are not held by more than 15 investors who collectively have the power to appoint or remove the “operator” of the fund i.e. the director, trustee, or general partner, depending on the fund’s choice of vehicle. For example, a private fund or closely held funds such as partners’ funds or those in incubation “testing the waters” before launching into the registered world. These funds need not make filings or pay fees to CIMA.

All other funds must register with CIMA, pay annual fees and undergo annual auditing.

What are the CIMA Hedge Fund Registration Requirements?

1. Incorporation/Formation of the fund vehicle. The fund must be in the form of one of three vehicles: i) a Cayman Islands Exempted Company (most common); ii) a Unit Trust; or iii) an Exempted Limited Partnership. (The latter is popular with US investors as the Cayman Islands Exempted Limited Partnership Law follows the equivalent legislation in Delaware.) There must be a minimum of two (2) directors appointed to the fund – corporate or individuals. The directors need not be local.

2. Preparation of the fund’s Offering Document.

3. Preparation of the fund’s constitutional documents (i.e. Memorandum and Articles of Association) to reflect the terms of the Offering Document. This is usually done by way of amending and restating the constitutional documents after the vehicle for the fund has been properly formed (see 1 above).

5. Preparation of the form of subscription agreement to be executed by the investors of the fund.

6. Resolutions must be passed approving: the Offering Document, service agreements and the issue of equity interests by the fund.

7. All of the following documents must then be submitted to CIMA:

i) A certified copy of the fund’s certificate of incorporation (or otherwise, depending on the vehicle used);
ii) Fund’s Offering Document;
iii) Application Form (“Form MF1”);
iv) Auditor’s letter of consent; (A local auditor must be appointed. Such auditor must also sign off on the fund’s audited financial statements which are to be submitted annually to CIMA.)
v) Administrator’s letter of consent (no requirement for local administrator);
vi) Registration fee (approximately US$3,000 (subject to change))

What Are the Costs for CIMA Registered Funds?

The total approximate costs of setting up a Cayman Islands Hedge Fund will include: the incorporation/formation costs of the vehicle required plus the ongoing annual fee (for exempted companies); the annual administrator’s fee; the annual auditor’s fee; the initial registration fee of the fund with CIMA and an annual fee to maintain the fund’s registration, and any legal fees associated therewith.

Quotes for incorporation etc. and estimates for services may be obtained from service providers and legal counsel directly, as these will likely vary. Legal counsel may provide recommendations for service providers upon request.

Bart Mallon, Esq. has written most all of the articles which appear on the Hedge Fund Law Blog. Mr. Mallon’s legal practice, Cole-Frieman & Mallon LLP, is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. If you are a hedge fund manager who is looking to start a hedge fund, or if you have questions about investment adviser registration with the SEC or state securities commission, please call Mr. Mallon directly at 415-296-8510.

Occasionally we will have readers submit potential articles for publication on this website which is the case with the post below. If you are interested in having your article re-published on our website, please contact us.

Hedge Fund Research, Inc. (HFRI) recently conducted a study that shows a recent increase in quarterly assets invested in the hedge fund industry as well as a rise in the number of funds. This data leads some experts to remain hopeful that the industry as a whole can sustain the impact of the financial crisis, and it begs the question as to how newcomers to the industry will be impacted by the new the impetus for regulation and transparency.

Kelly Chesney, and industry expert and co-founder of a well-known investment management company, maintains that the move towards regulation and transparency will be a good thing for the industry as a whole, but the cost of such regulation may raise the barrier to for women trying to enter a largely male-dominated industry. Currently, only three percent of hedge funds are led by women. Opinions vary as to how the high costs of running a fund will impact women trying to enter the industry and run their own business. Typically, smaller and newer funds will have a more difficult time trying to keep up with the rising costs of compliance given their relatively low assets under management. Opinions vary as to how the high costs of running a fund will impact women trying to enter the industry and run their own business. Some experts, like Chesney, remain hopeful that opportunities do exist out there for women and perhaps the future will find more female hedge fund managers than we see today.

The article published by The Glass Hammer can be found here and is also reprinted in full below.

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The Future of Hedge Funds

by Liz O’Donnell (Boston)

New data from Hedge Fund Research, Inc., (HFRI) shows assets invested in the industry increased by $100 billion in the second quarter of 2009, ending at $1.43 trillion. This is the first quarterly increase in assets since second quarter of 2008. HFRI attributes the growth to gains shown during the quarter. The HFRI Fund Weighted Composite Index returned 9.13 percent. This is the best quarterly gain since the last quarter of 1999, although still below the highest peak, reached in 1997. And while investors are still redeeming capital, the pace of the redemptions has slowed from recent years.

But looking past the most current returns, what does the future hold for the hedge fund industry given the tremendous impact of the global financial crisis and amid discussions of government regulations? And what about the outlook for women? Will the recent inflow mean more opportunities or will women still be virtually missing from the industry this time next year?

“Right now hedge funds are a hot topic,” says Kelly Chesney, principal and co-founder of Pluscios Management LLC, a women-owned investment management firm. “I think they really got some negative press and sentiment last year and they are starting to turn around. There is more publicity when hedge funds don’t perform well, but they did much of what was expected.”

Following what she calls “an economic tsunami”, Chesney, and others, see consolidation and regulation as key issues that will impact the industry. “I think it will be choppy and we’ll have various events happen over the next few years. We need to be nimble and adaptive and hedge funds are good at that,” Chesney says.

Certainly the industry has already seen the beginnings of consolidation. After a rapid growth spurt, (the number of funds grew from 610 in 1990 to approximately 9,000 today) 15 percent of funds have disappeared. State Street, in its recently released report “Alternatives: New Views of the Hedge Fund Industry” says that half of all hedge funds may disappear before the crisis shakes out.

Eloise Yellen Clark, founder and CEO of OmniQuest Capital LLC, agrees consolidation will be a continuing trend. “More and more money is going to the bigger players where traditionally there was a bunch of little players. It gets awfully expensive for smaller (funds) to survive.”

As far as what the future holds, Clark says, “Everybody’s talking regulation. I really don’t think it’s a big deal and I think it’s a good idea.” Clark points out that many hedge funds and many managers are already registered with the SEC. She believes more regulation around the issue of transparency would be valuable. Of course, just how far the government takes regulation could be an issue. “On the whole, reasonable regulation that respects fair markets is good. Transparency is good. But limiting the ability to buy and sell is bad,” said Clark.

Chesney says “absolutely” regulation will be a factor moving forward. “It’s not like there hasn’t been regulation.” But that regulation could increase. “It depends on what it is,” she says. “It could be wide ranging — from every fund must register—or it could be a ban on short selling.”

Some funds are “hedging” their bets. Aimee McCarty, marketing director for Ascentia Capital Partners, LLC, says her firm closed its hedge fund and now offers a mutual fund. According to McCarty, the new product combines the benefits of hedge funds with the features of mutual funds to offer a product that is “regulated, transparent, and liquid.” AQR Capital Management LLC added a mutual fund to its product offering earlier in the year.

Diversification might spell survival for some financial firms. Chesney believes it will get more expensive to run a fund, as compliance with regulations will add a new level of management. “There will be a higher barrier to entry,” she says.

That high cost of entry might not bode well for women. Already, there are very, very few women in the hedge fund industry. Currently only three percent of hedge funds are led by a woman. A recent report from The National Council for Research on Women, which we reported on here , asserts that one of the major reasons there are so few women in the industry is that gaining access to capital is harder for women than it is for men.

Chesney says,

“Typically women who get frustrated in other industries go out and start their own thing. But it’s tougher for women on Wall Street (because of) getting assets to manage.” None the less, Chesney is hopeful about the future of women in hedge funds. “I think there are going to be a lot of opportunities.”

Clark, who currently sees very few women in the business, says: “It’s my belief that women are different in business than men. Any organization that combines that is optimal.”

Chesney agrees. “Key in any fund management is diversification.” Whether that diversification extends beyond the fund and to the fund managers, is still to be seen.

Many hedge fund managers were introduced to the Bloomberg terminal when they began their trading careers. The terminal, with its iconic user interface which has changed only by small increments over time, can be found in most large asset management companies as well as in smaller groups like family offices, fund of hedge funds, hedge funds and even single manager investment advisory firms. The breadth and depth of the Bloomberg services may be matched by other similar financial information and news services (like Thompson/Reuters), but managers and traders seem to be drawn to the Bloomber services nonetheless. Below is an overview of information we compiled on the Bloomberg services – please feel free to share any thoughts in the comments below.

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Bloomberg Terminal Information Overview

What is Bloomberg?

The Bloomberg terminal is a computer system that enables financial professionals to access the Bloomberg Professional service through which users can monitor and analyze real-time financial market data movements and place trades. The system also provides news, price quotes, and messaging across its proprietary and secure network. Most large financial firms have subscriptions to the Bloomberg Professional service, and many exchanges charge their own additional fees for access to real-time price feeds across the terminal.

What services does Bloomberg offer?

Bloomberg offers financial professionals access to a top-of-the-line financial, regulatory, and market database. The system is of particular benefit to investors, as it allows them to simultaneously:

access, process, and store information on the companies they wish to monitor;

teleconference with colleagues around the world; and

monitor the relationship between domestic and foreign currencies.

The activities for which Bloomberg users most commonly subscribe to the service include, but are not limited to:

Earnings Estimates

Analyst Recommendations

Related Securities

Various graphs of a company’s stock price

Stock screening search: Search for equities based on user-defined criteria

Corporate Actions: Calendar of events that might impact markets

Corporate actions of a specific company

Broad information on U.S. Treasury and Money Markets

U.S. Economic surveys and releases

Mergers & Acquisitions Home Page

Current news and deals

Bloomberg Mobile, which is a free mobile application for iPhone and Blackberry users, doesn’t offer quite the same level of functionality as the full Bloomberg terminal, but it is a beautifully designed app that provides up-to-the-minute news, stock quotes, company descriptions, and price chart and market trend analysis. The My Stocks feature is a more detailed replacement for Apple’s Stocks app. Additionally, Bloomberg Mobile takes full advantage of the iPhone’s position sensor by providing larger charts when you rotate the phone to a horizontal position.

The Bloomberg Platform & Equipment

The Bloomberg terminal implements a client-server architecture with the server running on a multiprocessor UNIX platform. Although the look and feel of the Bloomberg keyboard is very similar to the standard computer keyboard, there are several enhancements that help a user navigate through the system. Originally a self-contained operating system running on custom hardware, the Bloomberg Terminal now functions as an application within the Windows environment. There are essentially three levels to the system:

(1) The Core Terminal:

This is the original system, consisting typically of 4 windows, each containing a separate instance of the terminal command line. By entering tickers and functions, data can be displayed and programs run to analyze it. This seemingly large number of windows allows users to call up several entirely different sets of data, and compare it quickly; for those users who have more than one computer display, each terminal window can be assigned independently, creating, in effect, four terminals.

(2) The Launchpad:

Launchpad is a customizable display consisting of a number of smaller windows, called ‘components’, each of which is dedicated to permanently displaying one set of data. A typical user would be a stockbroker who wishes to keep a list of 30 stocks visible at all times: Launchpad creates a small component which will show these prices constantly, saving the broker from having to check each stock independently in the terminal. Other functions, such as email inboxes, calculation tools and news tickers can be similarly displayed. The Instant Bloomberg messaging/chat tool is another Launchpad component that allows brokers to communicate instantly with other Bloomberg users.

(3) Application Programming Interface:

The final level of the Bloomberg system is the ability to export data from the terminal to 3rd party applications, such as Microsoft Excel. A user might wish to use Bloomberg data from the terminal to create his or her own calculations; by exporting the live data into another program, they can build these formulae. Bloomberg supports this through a range of add-ins which are packaged with the terminal software.

How much does Bloomberg cost?

While Bloomberg offers a great variety of services, it is relatively expensive. Monthly rates can be as high as $1,500 – $1,800 per month. However, as Bloomberg saw a decline in revenue over 2007 and 2008, it is to be expected that the rates will come down by the end of 2009. Although Bloomberg has become an institutional cornerstone in the finance world, leading competitors for electronic financial data provision include Thomson/Reuters, Morgan Stanley, FactSet Research Systems, Jackson Terminal, Advantage Data Inc., Fidessa and Dow Jones.

Conclusion

Bloomberg Terminal currently caters to more than 300,000 users worldwide, and is highly regarded by financial professionals as a powerful data-warehouse for institutional investors. Since the relatively high ongoing cost makes it unfeasible for individual investors with relatively small amounts of capital to purchase, the product targets a unique subsector of investors with the purchasing power to enjoy the benefits of comprehensive access to the financial marketplace.

The SEC released a testimony from Andrew J. Donohue before the U.S. Senate about the regulation of hedge funds and other private investment pools. According to Mr. Donohue’s statement, securities laws have not kept pace with the growth market and thus the SEC has very little oversight authority over these advisors and private funds with regards to conducting compliance examinations, obtaining material information, etc primarily because these requirements only apply to those advisors and entities registered with the SEC. Because advisors to private funds have the option to ‘opt out’ of registration, they can easily bypass any monitoring and oversight. The Commission strongly supports the enforcement of the new Private Funds Transparency Act of 2009,* which attempts to close this regulatory gap by requiring advisors to private funds to register under the Advisers Act if they have at least $30 million of assets under management. The Commission also notes that in order to be effective, the new regulatory reform should acknowledge the differences in the business models pursued by different types of private fund advisers and should address in a proportionate manner the risks to investors and the markets raised by each.

The various compliance requirements on advisors to private funds as set forth by this new legislation is outlined in the testimony, reprinted in full below.

Before the Subcommittee on Securities, Insurance, and Investment of the U.S. Senate Committee on Banking, Housing, and Urban Affairs
July 15, 2009

Chairman Reed, Ranking Member Bunning and Members of the Subcommittee:

I. Introduction

Thank you for the opportunity to testify before you today. My name is Andrew Donohue, and I am the Director of the Division of Investment Management at the Securities and Exchange Commission. I am pleased to testify on behalf of the Commission about regulating hedge funds and other private investment pools.1

Over the past two decades, private funds, including hedge, private equity and venture capital funds, have grown to play an increasingly significant role in our capital markets both as a source of capital and the investment vehicle of choice for many institutional investors. We estimate that advisers to hedge funds have almost $1.4 trillion under management. Since many hedge funds are very active and often leveraged traders, this amount understates their impact on our trading markets. Hedge funds reportedly account for 18-22 percent of all trading on the New York Stock Exchange. Venture capital funds manage about $257 billion of assets,2 and private equity funds raised about $256 billion last year.3

The securities laws have not kept pace with the growth and market significance of hedge funds and other private funds and, as a result, the Commission has very limited oversight authority over these vehicles. Sponsors of private funds—typically investment advisers—are able to organize their affairs in such a way as to avoid registration under the federal securities laws. The Commission only has authority to conduct compliance examinations of those funds and advisers that are registered under one of the statutes we administer. Consequently, advisers to private funds can “opt out” of Commission oversight.

Moreover, the Commission has incomplete information about the advisers and private funds that are participating in our markets. It is not uncommon that our first contact with a manager of a significant amount of assets is during an investigation by our Enforcement Division. The data that we are often requested to provide members of Congress (including the data we provide above) or other federal regulators are based on industry sources, which have proven over the years to be unreliable and inconsistent because neither the private funds nor their advisers are required to report even basic census-type information.

This presents a significant regulatory gap in need of closing. The Commission tried to close the gap in 2004—at least partially—by adopting a rule requiring all hedge fund advisers to register under the Investment Advisers Act of 1940 (“Advisers Act”).4 That rulemaking was overturned by an appellate court in the Goldstein decision in 2006.5 Since then, the Commission has continued to bring enforcement actions vigorously against private funds that violate the federal securities laws, and we have continued to conduct compliance examinations of the hedge fund advisers that remain registered under the Advisers Act. But we only see a slice of the private fund industry, and the Commission strongly believes that legislative action is needed at this time to enhance regulation in this area.

The Private Fund Transparency Act of 2009, which Chairman Reed recently introduced, would require advisers to private funds to register under the Advisers Act if they have at least $30 million of assets under management.6 This approach would provide the Commission with needed tools to provide oversight of this important industry in order to protect investors and the securities markets. Today, I wish to discuss how registration of advisers to private funds under the Advisers Act would greatly enhance the Commission’s ability to properly oversee the activities of private funds and their advisers. Although the Commission supports this approach, there are additional approaches available to that also would close the regulatory gap and provide the Commission with tools to better protect both investors and the health of our markets.

II. The Importance and Structure of Private Funds

Private funds are generally considered to be professionally managed pools of assets that are not subject to regulation under the Investment Company Act of 1940 (“Investment Company Act”). Private funds include, but are not limited to, hedge funds, private equity funds and venture capital funds.

Hedge funds pursue a wide variety of strategies that typically involve the active management of a liquid portfolio, and often utilize short selling and leverage.

Private equity funds generally invest in companies to which their advisers provide management or restructuring assistance and utilize strategies that include leveraged buyouts, mezzanine finance and distressed debt. Venture capital funds typically invest in earlier stage and start-up companies with the goal of either taking the company public or privately selling the company. Each type of private fund plays an important role in the capital markets. Hedge funds are thought to be active traders that contribute to market efficiency and enhance liquidity, while private equity and venture capital funds are seen as helping create new businesses, fostering innovation and assisting businesses in need of restructuring. Moreover, investing in these funds can serve to provide investors with portfolio diversification and returns that may be uncorrelated or less correlated to traditional securities indices.

Any regulatory reform should acknowledge the differences in the business models pursued by different types of private fund advisers and should address in a proportionate manner the risks to investors and the markets raised by each.

III. Current Regulatory Exemptions

Although hedge funds, private equity funds and venture capital funds reflect different approaches to investing, legally they are indistinguishable. They are all pools of investment capital organized to take advantage of various exemptions from registration. All but one of these exemptions were designed to achieve some purpose other than permitting private funds to avoid oversight.

A. Securities Act of 1933

Private funds typically avoid registration of their securities under the Securities Act of 1933 (Securities Act) by conducting private placements under section 4(2) and Regulation D.7 As a consequence, these funds are sold primarily to “accredited investors,” the investors typically receive a “private placement memorandum” rather than a statutory prospectus, and the funds do not file periodic reports with the Commission. In other words, they lack the same degree of transparency required of publicly offered issuers.

B. Investment Company Act of 1940

Private funds seek to qualify for one of two exceptions from regulation under the Investment Company Act of 1940 (Investment Company Act). They either limit themselves to 100 total investors (as provided in section 3(c)(1)) or permit only “qualified purchasers” to invest (as provided in section 3(c)(7)).8 As a result, the traditional safeguards designed to protect retail investors in the Investment Company Act are the subject of private contracts for investors in private funds. These safeguards include investor redemption rights, application of auditing standards, asset valuation, portfolio transparency and fund governance. They are typically included in private fund partnership documents, but are not required and vary significantly among funds.

C. Investment Advisers Act of 1940

The investment activities of a private fund are directed by its investment adviser, which is typically the fund’s general partner.9 Investment advisers to private funds often claim an exemption from registration under section 203(b)(3) of the Advisers Act, which is available to an adviser that has fewer than 15 clients and does not hold itself out generally to the public as an investment adviser.

Section 203(b)(3) of the Advisers Act contains a de minimis provision that we believe originally was designed to cover advisers that were too small to warrant federal attention. This exemption now covers advisers with billions of dollars under management because each adviser is permitted to count a single fund as a “client.” The Commission recognized the incongruity of the purpose of the exemption with the counting rule, and adopted a new rule in 2004 that required hedge fund advisers to “look through” the fund to count the number of investors in the fund as clients for purposes of determining whether the adviser met the de minimis exemption. This was the rule overturned by the appellate court in the Goldstein decision. As a consequence, approximately 800 hedge fund advisers that had registered with the Commission under its 2004 rule subsequently withdrew their registration.

All advisers to private funds are subject to the anti-fraud provisions of the Investment Advisers Act, including an anti-fraud rule the Commission adopted in response to the Goldstein decision that prohibits advisers from defrauding investors in pooled investment vehicles.10 Registered advisers, however, are also subject to periodic examination by Commission staff. They are required to submit (and keep current) registration statements providing the Commission with basic information, maintain business records for our examination, and comply with certain rules designed to prevent fraud or overreaching by advisers. For example, registered advisers are required to maintain compliance programs administered by a chief compliance officer.

IV. Options to Address the Private Funds Regulatory Gap11

As discussed below, though there are different regulatory approaches to private funds available to Congress, or a combination of approaches, no type of private fund should be excluded from any new oversight authority any particular type of private fund. The Commission’s 2004 rulemaking was limited to hedge fund advisers. However, since that time, the lines which may have once separated hedge funds from private equity and venture capital funds have blurred, and the distinctions are often unclear. The same adviser often manages funds pursuing different strategies and even individual private funds often defy precise categorization. Moreover, we are concerned that in order to escape Commission oversight, advisers may alter fund investment strategies or investment terms in ways that will create market inefficiencies.

A. Registration of Private Fund Investment Advisers

The Private Funds Transparency Act of 2009 would address the regulatory gap discussed above by eliminating Section 203(b)(3)’s de minimis exemption from the Advisers Act, resulting in investment advisers to private funds being required to register with the Commission. Investment adviser registration would be beneficial to investors and our markets in a several important ways.

1. Accurate, Reliable and Complete Information

Registration of private fund advisers would provide the Commission with the ability to collect data from advisers about their business operations and the private funds they manage. The Commission and Congress would thereby, for the first time have accurate, reliable and complete information about the sizable and important private fund industry which could be used to better protect investors and market integrity. Significantly, the information collected could include systemic risk data, which could then be shared with other regulators.12

2. Enforcement of Fiduciary Responsibilities

Advisers are fiduciaries to their clients. Advisers’ fiduciary duties are enforceable under the anti-fraud provisions of the Advisers Act. They require advisers to avoid conflicts of interest with their clients, or fully disclose the conflicts to their clients. Registration under the Advisers Act gives the Commission authority to conduct on-site compliance examinations of advisers designed, among other things, to identify conflicts of interest and determine whether the adviser has properly disclosed them. In the case of private funds, it gives us an opportunity to determine facts that most investors in private funds cannot discern for themselves. For example, investors often cannot determine whether fund assets are subject to appropriate safekeeping or whether the performance represented to them in an account statement is accurate. In this way, registration may also have a deterrent effect because it would increase an unscrupulous adviser’s risk of being discovered.

A grant of additional authority to obtain information from and perform on-site examinations of private fund advisers should be accompanied with additional resources so that the Commission can bring to bear the appropriate expertise and technological support to be effective.

3. Prevention of Market Abuses

Registration of private fund advisers under the Advisers Act would permit oversight of adviser trading activities to prevent market abuses such as insider trading and market manipulation, including improper short-selling.

4. Compliance Programs

Private fund advisers registered with the Commission are required to develop internal compliance programs administered by a chief compliance officer. Chief compliance officers help advisers manage conflicts of interest the adviser has with private funds. Our examination staff resources are limited, and we cannot be at the office of every adviser at all times. Compliance officers serve as the front-line watch for violations of securities laws, and provide protection against conflicts of interests.

Registration with the Commission permits us to screen individuals associated with the adviser, and to deny registration if they have been convicted of a felony or engaged in securities fraud.

6. Scalable Regulation

In addition, many private fund advisers have small to medium size businesses, so it is important that any regulation take into account the resources available to those types of businesses. Fortunately, the Advisers Act has long been used to regulate both small and large businesses, so the existing rules and regulations already account for those considerations. In fact, roughly 69 percent of the investment advisers registered with the Commission have 10 or fewer employees.

7. Equal Treatment of Advisers Providing Same Services

Under the current law, an investment adviser with 15 or more individual clients and at least $30 million in assets under management must register with the Commission, while an adviser providing the same advisory services to the same individuals through a limited partnership could avoid registering with the Commission. Investment adviser registration in our view is appropriate for any investment adviser managing $30 million regardless of the form of its clients or the types of securities in which they invest.

B. Private Fund Registration

Another option to address the private fund regulatory gap might be to register the funds themselves under the Investment Company Act (in addition to registering their advisers under the Advisers Act). Alternatively, the Commission could be given stand-alone authority to impose requirements on unregistered funds. Through direct regulation of the funds, the Commission could impose, as appropriate, investment restrictions or diversification requirements designed to protect investors. The Commission could also regulate the structure of private funds to protect investors (such as requiring an independent board of directors) and could also regulate investment terms (such as protecting redemption rights).

C. Regulatory Flexibility through Rulemaking Authority

Finally, there is third option that in conjunction with advisers’ registration may be necessary to address the regulatory gap in this area. Because it is difficult, if not impossible, to predict today what rules will be required in the future to protect investors and obtain sufficient transparency, especially in an industry as dynamic and creative as private funds, an additional option might be to provide the Commission with the authority that allows for additional regulatory flexibility to act in this area. This could be done by providing rule-making authority to condition the use by a private fund of the exceptions provided by sections 3(c)(1) and 3(c)(7) of the Investment Company Act. These conditions could impose those requirements that the Commission believes are necessary or appropriate to protect investors and enhance transparency.13 In many situations, it may be appropriate for these requirements to vary depending upon the type of fund involved. This would enable the Commission to better discharge its responsibilities and adapt to future market conditions without necessarily subjecting private funds to Investment Company Act registration and regulation.

V. Conclusion

The registration and oversight of private fund advisers would provide transparency and enhance Commission oversight of the capital markets. It would give regulators and Congress, for the first time, reliable and complete data about the impact of private funds on our securities markets. It would give the Commission access to information about the operation of hedge funds and other private funds through their advisers. It would permit private funds—which play an important role in our capital markets—to retain the current flexibility in their investment strategies.

The Commission supports the registration of private fund advisers under the Advisers Act. The other legislative options I discussed above, namely registration of private funds under the Investment Company Act and/or providing the Commission with rulemaking authority in the Investment Company Act exemptions on which private funds rely, should also be weighed and considered as the Subcommittee considers approaches to filling the gaps in regulation of pooled investment vehicles.

I would be happy to answer any questions you may have.

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Endnotes:

1 Commissioner Paredes does not endorse this testimony.

2 The National Venture Capital Association (NVCA) estimates that 741 venture capital firms and 1,549 venture capital funds were in existence in 2007, with $257.1 billion in capital under management. NVCA, Yearbook 2008 at 9 (2008). In 2008, venture capital funds raised $28.2 billion down from $35.6 billion in 2007. Thomson Reuters & NVCA, News Release (Apr. 13 2009). In 2007, the average fund size was $166 million and the average firm size was $347 million. Id. at 9.

6 Section 203A(a)(1) of the Act prohibits a state-regulated adviser to register under the Act if it has less than $25 million of assets under management. The Commission has adopted a rule increasing the $25 million threshold to $30 million. See Rule 203A-1 under the Advisers Act. The threshold does not apply to foreign advisers. Section 3 of the Private Fund Transparency Act would establish a parallel registration threshold for foreign advisers, which would prevent numerous smaller foreign advisers that today rely on the de minimis exception, which the Act would repeal, from being required to register with the Commission.

7 Section 4(2) of the Securities Act of 1933 provides an exemption from registration for transactions by the issuer of a security not involving a public offering. Rule 506 of Regulation D provides a voluntary “safe harbor” for transactions that are considered to come within the general statutory language of section 4(2).

8 “Qualified purchasers” generally are individuals or family partnerships with at least $5 million in investable assets and companies with at least $25 million. The section 3(c)(7) exception was added in 1996 and specifically anticipated use by private funds.

9 Private funds often are organized as limited partnerships with the fund’s investment adviser serving as the fund’s general partner. The fund’s investors are limited partners of the fund.

10 See Rule 206(4)-8 under the Advisers Act.

11 Commissioner Casey does not endorse the approaches discussed in sections IV. B and C.

12 The Private Fund Transparency Act includes some important although technical amendments to the Advisers Act that are critical to the Commission’s ability to collect information from advisers about private funds, including amendments to Section 204 of the Act permitting the Commission to keep information collected confidential, and amendments to Section 210 preventing advisers from keeping the identity of private fund clients from our examiners.

13 For example, private funds might be required to provide information directly to the Commission. These conditions could be included in an amendment to the Investment Company Act or could be in a separate statute.

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Bart Mallon, Esq. runs hedge fund law blog and has written most all of the articles which appear on this website. Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund. Mallon P.C. helps hedge fund managers to register as investment advisors with the SEC or the state securities divisions. If you are a hedge fund manager who is looking to start a hedge fund or register as an investment advisor, please contact us or call Mr. Mallon directly at 415-296-8510. Other related hedge fund law articles include: